SUN TECHNOLOGY ENTERPRISES, INC.
DEVELOPMENT AND PURCHASE AGREEMENT
This Agreement is made and entered into by and between Sun Microsystems, Inc., a
Delaware corporation having its principal place of business at 2550 Garcia
Avenue, Mountain View, California 94043 and acting by and through the SunConnect
unit of its subsidiary Sun Technology Enterprises, Inc. ("SunConnect"), and
Network Peripherals Inc., a California corporation having its principal place of
business at 1371 McCarthy Boulevard, Milpitas, CA 95035 ("NP").
1.0 DEFINITIONS
1.1 "Administrator(s)" means the individuals listed in Section 28
below, or an individual designated by such Administrator.
1.2 "BOM" means the Bill of Materials describing the OEM Products
as they are to be delivered to SunConnect set forth in Exhibit A-4, which may be
modified with the mutual written agreement of each party's Administrator.
1.3 "Development Deliverable" means each deliverable required
pursuant to the Development Schedule and Deliverables.
1.4 "Development Schedule and Deliverables" means the schedule of
tasks, deliverables and completion dates set forth in Exhibit B.
1.5 "Documentation" means the user manual and other written
materials related to the OEM Products as described in the Product Specification
and Development Deliverables.
1.6 "NP Products" means the OEM Products minus the Sun-Unique
Elements.
1.7 "OEM Products" means the FDDI Adapter for the SBbus/Solaris
systems product line described in the Product Specification (SunLink FDDI/S
3.x), and any additional products the parties add by mutual consent. The term
"OEM Products" shall include Documentation except with respect to those
instances where this Agreement separately refers to Documentation.
1.8 "Proprietary Information" means that information which
SunConnect and NP desire to protect against unrestricted disclosure or
competitive use and which, if disclosed in writing, is designated as such in
writing by the disclosing party or, if disclosed orally, is announced as
confidential at the time of its disclosure by the disclosing party and within
thirty (30) days thereafter is summarized in writing and such summary is
provided to the receiving party.
1.9 "Product Specification" means the description of the OEM
Products set forth in Exhibits A, A-1 and A-2.
1.10 "SunConnect Modification" means any modification,
enhancement, extension or addition of or to the OEM Products, in source or
object code form, developed by or on behalf of SunConnect (but excluding
modifications developed by NP pursuant to this Agreement).
1.11 "Sun-Unique Elements" means those elements of the OEM
Products listed in Exhibit C attached hereto.
1.12 "Service Provider" means an entity which SunConnect has
authorized to provide product support to customers, which may include
distributors, resellers and support partners.
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2.0 DEVELOPMENT OF OEM PRODUCTS
2.1 Development of OEM Products. NP and SunConnect will develop
and test the OEM Products in accordance with the milestones, delivery dates and
testing requirements set forth in the Development Schedule and the pre-FCS
"SunLink FDDI/S 3.x Quality Assurance Plan attached hereto as Exhibit A-3.
Changes to the Development Schedule and/or the Product Specification may be made
with the mutual written consent of the Administrators of both parties.
2.2 * "Confidential portion has been omitted and filed separately
with the Commission."
2.3 Acceptance of Deliverables. SunConnect shall acknowledge in
writing or by electronic mail its receipt of each Development Deliverable.
SunConnect will notify NP as soon as possible whether the Development
Deliverable is accepted or rejected, provided that each Development Deliverable
will be deemed automatically accepted if SunConnect's Administrator fails to
notify NP in writing that SunConnect accepts or rejects such deliverable within
thirty (30) days from the date of its delivery.
2.4 Correction of Errors in Deliverables. If, within the thirty
(30) day acceptance period, SunConnect notifies NP in writing that an
Development Deliverable fails to satisfy the criteria set forth in the
Development Schedule or Product Specification and provides NP with a written
explanation thereof, NP will have five (5) days to provide SunConnect with a
revised schedule for correcting the defect(s) in the non-conforming Development
Deliverable and shall promptly institute and diligently execute such
corrections.
2.5 FCS Decision. Pursuant to the Development Schedule, SunConnect
is responsible for making a "Go/ No Go" decision regarding the first customer
ship of the OEM Products. SunConnect will notify NP in writing of the result of
the Go/ No Go decision within two days after the decision is made. If the
decision is a "go," then this decision will authorize NP to begin the production
phase for the OEM Products and to ship the OEM Products to SunConnect under the
terms set forth below.
3.0 DOCUMENTATION
3.1 Documentation Deliverables. Development Deliverables related
to Documentation are set forth in Exhibit B.
3.2 Post-FCS Documentation. The parties will negotiate in good
faith to determine who will be responsible for writing and implementing
revisions to the Documentation, and how related costs shall be allocated. NP
will not distribute any modified Documentation without the prior written
approval of the SunConnect Administrator.
3.3 Quality of Documentation Shipped by NP. The quality of
Documentation for the OEM Products shipped by NP at and after FCS must be
comparable with the quality of the current SunLink FDDI/S 2.0 documents.
(Notwithstanding the foregoing sentence, the documentation to be provided to
beta sites by NP may be xeroxed copies of the beta-stage documentation delivered
by SunConnect to NP.) Promptly after the Effective Date. NP will develop a
quality plan to ensure that the Documentation meets the Quality requirements for
post FCS documentation, and shall submit such quality plan to SunConnect's
Administrator for approval. After such approval the documentation quality plan
shall be attached as part of the Quality Assurance Plan described in Section 8.1
below. SunConnect shall also have the right to approve the quality of the
completed Documentation prior to shipment.
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4.0. OWNERSHIP
4.1 * "Confidential portion has been omitted and filed separately
with the Commission."
4.2 * "Confidential portion has been omitted and filed separately
with the Commission."
5.0 MAINTENANCE, SUPPORT AND TRAINING.
5.1 Support to Customers. Customer support for OEM Products,
SunLink FDDI/S 1.0 and SunLink FDDI/S 2.0 products shall be provided as set
forth in Exhibit E.
5.2 OEM Product Repair and Replacements Under Warranty. If a
SunConnect Service Provider receives an OEM Product which is eligible for
warranty service by NP under NP's warranty set forth in Section 23 below, then
the Service Provider will return such OEM Product to NP for repair or
replacement, and NP shall repair or replace such OEM Product in accordance with
the warranty provided under Section 23.
5.3 OEM Product Repair and Replacements Out of Warranty. Repair
and Replacement Prices for OEM Products which are not eligible for service under
NP's warranty ("Out of Warranty OEM Products") are set forth in Exhibit F. NP
will replace Out of Warranty OEM Products for SunConnect and SunConnect's
Service Providers, and will repair Out of Warranty OEM Products for SunConnect,
SunConnect's Service Providers, customers, distributors and resellers in
accordance with the procedures and prices in Exhibit F.
5.4 TOI. NP will provide SunConnect with the information described
in the "Transfer of Information" attached as Exhibit E, and will comply with the
procedures set forth therein. NP hereby grants SunConnect an unrestricted,
fully-paid license to use, duplicate, and distribute any TOI materials in
whatever fashion SunConnect or its Service Providers deem useful to provide
traning in the use of the OEM Products.
6.0 * "Confidential portion has been omitted and filed separately with
the Commission."
7.0 DISTRIBUTION OF NP PRODUCTS
7.1 No Distribution of OEM Products by NP. NP may not sell or
distribute the OEM Products, or any other products containing any
SunConnect-Unique Element without the express written consent of the SunConnect
Administrator.
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8.0 PRODUCTION OF OEM PRODUCTS
8.1 Quality Assurance. Attached hereto as Exhibit J is NP's
Quality Systems Manual for FCS and subsequent shipments for ensuring quality
standards of the OEM Products.
8.2 NP Responsibilities. Except as set for in Section 8.3 below,
NP will be responsible for all aspects of manufacturing, assembling, testing,
packaging and delivery of the OEM Products to the SunConnect-designated
location(s). Each OEM Product delivered to SunConnect will meet the requirements
set forth in Exhibits A (Product Specifications), B (Development Schedule and
Deliverables), A-4 (BOM), J (Quality Systems Manual), K-1 (Inbound)Outbound
Packaging Requirements), K-2 (Engineering Specification for Part Identification
Label), K-3 (Corporate Shipping Container Graphics Guideline), K-4 (Shipping
Carton Color Standard), K-5 (Specification for A SunConnect Color: SunConnect
Medium Purple), K-6 (Routing Guide) and Section 15 (Trademark License).
SunConnect shall have the right, on reasonable notice, to audit NP's premises
and records to verify compliance with these requirements. At least thirty (30)
days prior to NP's distribution of the first copy of each commercial release of
an OEM Product bearing the Sun Trademarks and Trade Dress (as defined in Section
15 below), NP shall provide SunConnect's Administrator with written
certification that NP has adequately reviewed and tested such OEM Product and
that it conforms to the requirements of this Section 8.2. NP shall keep written
records of such testing and make them available to SunConnect promptly upon
written request.
8.3 Other Responsibilities.
a. Compact Disks. SunConnect will initially be
responsible for the mastering of the compact disk to be included in the OEM
Products. NP will purchase the compact disks from SunConnect's vendor in
accordance with Section 8.11. (Nothing herein shall be deemed to limit
SunConnect's right to continue to order and purchase products from the vendors
fisted in Exhibit M.) After the FCS of the OEM Products, NP will use its best
efforts to identify and reach terms with a compact disk manufacturer within nine
(9) months of the Effective Date, pursuant to which NP would master compact
disks without SunConnect's assistance. NP will promptly provide SunConnect's
Administrator with the details of such agreement, including without limitation
all pricing terms. SunConnect may, at its option and in its sole discretion,
authorize NP to master compact disks directly, subject to SunConnect's approval
of content and quality.
b. Packaging Artwork. SunConnect shall design the artwork
for the OEM Product packaging. The completed artwork is a SunConnect Deliverable
to NP.
8.4 Copyright Notices. The Documentation shall bear a copyright
notice in the form (C)Sun Microsystems 19__. NP shall put a copyright notice on
the software components of the OEM Products and NP Products incorporating the
SunLink Source Code stating (C)Network Peripherals 19__, portions (C)Sun
Microsystems 19__. NP may put an NP copyright notice on the board component of
the OEM Products.
8.5 NP Improvements. NP agrees to keep SunConnect informed of any
improvements to of replacements for existing NP Products or OEM Products planned
to be made available during the term of this Agreement. NP agrees to notify
SunConnect's Administrator of such improvements in writing not less than 90 days
prior to shipment of NP Products incorporating such improvements to third
parties or customers and shall make available such improvements for OEM Products
at no charge to SunConnect, provided that such improvements do not significantly
affect the form, fit and function of the OEM Product in ways that differ from
any change in the form, fit or function of the corresponding NP Product.
SunConnect may elect to incorporate such improvements into the OEM Products by
notifying NP in
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writing within 30 days after notification of such improvements. If SunConnect so
notifies NP within the 30 day period, then NP will ensure that any NP
Improvements are incorporated into OEM Products at least as early as they am
incorporated into NP Products. The terms of Section 10.2 * "Confidential portion
has been omitted and filed separately with the Commission." will continue to
apply to any improved OEM Products.
8.6 NP Modifications. NP will not implement any changes in design
or manufacture that might affect form, fit or function of the OEM Products,
including without limitation, changes in performance, maintenance procedures,
interchangeability, interconnectability, reliability or compatibility of OEM
Products, without the prior written consent of a SunConnect Administrator and
such consent shall not be unreasonably withheld.
8.7 Mandatory Changes.
a. "Mandatory Changes," as used herein means any change
necessary to ensure that OEM Products comply with the following standards, as
such standards are constituted on the date of shipment: (1) the Product
Specification; (2) applicable laws or regulations; or (3) recognized and
accepted commercial safety standards for similar products. NP will. at its own
expense, supply SunConnect or SunConnect's Service Providers (as directed by
SunConnect) parts kits and detailed rework instructions for all OEM Products
purchased by SunConnect affected by any Mandatory Change, regardless of whether
such OEM Products have been delivered to SunConnect, its customers, resellers or
distributors.
b. If a Mandatory Change requires replacement of products
already delivered to SunConnect's customers, resellers and distributors, then
SunConnect or SunConnect's Service Provider(s) shall implement such replacements
in accordance with the reasonable instructions provided by NP. NP shall be
responsible for all necessary and reasonable costs incurred by SunConnect or its
Service Provider(s) in any replacement of products delivered to SunConnect's
customers, distributors and resellers which is required by Section 8.7(a).
8.8 O/S and Platform Changes.
(a) "Systems Changes," as used herein means any change
necessary to ensure that NP Products remain compatible with new versions of the
Sun Operating System and new versions of the Sun platform. NP will use its best
commercial efforts to develop Systems Changes. NP agrees to notify SunConnect
within a reasonable period of time after the release of a new version of the Sun
Operating System or Sun Platform of Systems Changes planned for the NP Products
and shall make available such System Changes for OEM Products at no charge to
SunConnect. SunConnect may elect to incorporate System Changes into the OEM
Products by notifying NP in writing within 30 days after notification of such
System Changes. If SunConnect so notifies NP within the 30 day period, than NP
will ensure that any System Changes are available incorporated into OEM Products
at least as early as they are incorporated into NP Products. The terms of
Section 10.2 * "Confidential portion has been omitted and filed separately with
the Commission." will continue to apply to any revised OEM Products.
(b) When Systems Changes am not planned for the NP
Products, then SunConnect may request such changes in accordance with Section
8.9 and the parties will mutually develop a development schedule.
(c) NP will perform all required compatibility testing
for all new Sun Operating Systems and new Sun platforms at NP's expense.
SunConnect will provide NP with the necessary equipment and operating system
software to perform such testing.
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8.9 SunConnect Requested and Required Changes.
a. SunConnect may, at any time, require changes in
writing to any of the following: method of shipment or packing; place of
delivery, or the Exhibits marked with an * in Section 29.8 ("Required Change").
In addition, SunConnect may, at any time, request changes to applicable
drawings, designs or specifications, or to ensure compatibility with other new
or modified SunConnect products ("Requested Change").
b. If a Required or Requested Change causes an increase
in the cost or the time required by NP for performance of any purchase order
issued under this Agreement and NP so notifies SunConnect in writing, then if
SunConnect wishes such Requested or Required Change to be made, an equitable
adjustment will be made in the price or delivery schedule or both and the
Agreement and/or any applicable purchase order will be modified accordingly in
writing. Claims by NP for adjustment due to a SunConnect Requested or Required
Change order must be made within fifteen (15) days from the date of NP's receipt
of the change order; provided, however, that such period may be extended upon
the written approval of SunConnect.
c. If any SunConnect Requested or Required Change
requires reworking of any OEM Product already delivered to SunConnect, NP will,
at SunConnect's expense, supply components for all OEM Products purchased by
SunConnect affected thereby.
8.10 NP Purchase from SunConnect Suppliers. NP may purchase
specific components for the OEM Products from specified SunConnect suppliers as
SunConnect's authorized sub-contractor as set forth on Exhibit M. NP shall
comply with all applicable provisions of the SunConnect contract with such
suppliers. SunConnect agrees to provide NP with the text of applicable
provisions. All items so purchased must be used in OEM Products, and may not be
used in NP Products or other products without the express written consent of
SunConnect.
8.11 NP Sub-Contractors. NP may subcontract the production of
components of the OEM Products to suppliers, provided that each such supplier
agrees to and fulfills all quality and compliance requirements set forth in this
Agreement and its Exhibits.
8.12 Future Cooperation. The parties agree to work together to
evaluate and develop new technologies and products for FDDI network interface
cards as mutually agreed to. If new products are developed, the parties will
negotiate an agreement with terms as similar as possible to this Agreement,
except that product specifications, pricing and leadtimes may be different for
such new products.
9.0 PURCHASE OF OEM PRODUCTS
9.1 Orders. SunConnect shall order OEM Products by telecopier,
telephone, electronic data interchange ("EDI") as specified in Section 16.3,
and/or in writing on SunConnect's standard purchase order form. Each telephone
order shall be confirmed by a hard-copy purchase order within five (5) days
after the placement of such telephone order. All orders for OEM Products will be
governed by this Agreement and shall not be governed by the terms of
SunConnect's or NP's purchase order, acceptance or other form documents. This
Agreement does not constitute a purchase order SunConnect shall be liable under
this Agreement only for those OEM Products covered by a SunConnect purchase
order.
9.2 Sale to SunConnect Subcontractors. NP shall sell and license
OEM Products under the pricing and terms set forth in this Agreement to
SunConnect-designated subcontractors ("Subcontractors") upon express written
authorization by SunConnect. SunConnect shall be liable to pay only for OEM
Products ordered by and invoiced directly to SunConect and shall not be liable
to pay for
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any OEM Products ordered by Subcontractors. All purchases made by Subcontractors
shall be added to SunConnect's cumulative volume of OEM Products purchased.
9.3 Forecasts. SunConnect shall supply a six month rolling
forecast by the 10th day of each month, with the first two months broken out by
week. The first two months shall be backed by a purchase order which is
non-cancelable. The third month of the forecast is a firm commitment, which may
be rescheduled as specified in Section 14.1.
9.4 SoftwarelFirmware License. With respect to OEM Products which
contain NP software and/or firmware (Software'). NP hereby grants to SunConnect
a perpetual, nontransferable, nonexclusive license to use, market, distribute
and sublicense the use of the Software in object code form only, and to
authorize others to do the foregoing, solely in conjunction with the sale,
license, loan of distribution of the OEM Products.
9.5 * "Confidential portion has been omitted and filed separately
with the Commission."
10.0 PRICE OF OEM PRODUCT(S).
10.1 Pricing. The prices and applicable discounts for the OEM
Products are specified in Exhibit N. The prices set forth in Exhibit N do not
include freight or taxes, and all applicable federal, state and local sales or
use taxes shall be separately stated on NP's invoice. SunConnect shall be liable
to NP for the payments of such sales or use taxes only if SunConnect has failed
to comply with the statutory resale tax certificate requirements of states where
appropriate.
10.2 * "Confidential portion has been omitted and filed separately
with the Commission."
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10.3 * "Confidential portion has been omitted and filed separately
with the Commission."
10.4 Price Notification. During the tenth week of each calendar
quarter, NP will provide to a SunConnect Administrator a written confirmation of
the price of each OEM Product and component thereof, as such price has been
determined in accordance with Sections 10.1 10.3. NP will provide such price
confirmation whether or not any price has changed from the previous quarter. The
prices set forth in such notification will be deemed accepted if SunConnect
fails to notify NP in writing of any disagreement within 10 days after receipt
of the notification by the SunConnect Administrator.
10.5 Special Requests. If SunConnect requests NP to manufacture or
deliver OEM Products to SunConnect on special terms which will cause an increase
in the manufacturing cost to NP, then NP shall notify the SunConnect
Administrator in writing, specifying the additional costs and available options.
SunConnect shall have 10 day to accept or reject such additional costs. Failure
to respond shall be deemed a rejection of such additional costs and such special
terms.
11.0 SHIPMENT AND DELIVERY
11.1 Leadtimes and Delivery Dates. Leadtimes for OEM Products are
set forth in Exhibit N. NP agrees to accept and deliver the full quantity of OEM
Products ordered on the delivery dates requested by SunConnect, to the extent
that such dates are in conformance with leadtimes set forth in Exhibit N, or
otherwise mutually-agreed to delivery dates ("Agreed Delivery Date"). If
SunConnect requests delivery dates earlier than the leadtimes set forth in
Exhibit N, NP agrees to use commercially reasonable efforts to meet such
requested delivery dates or to propose the earliest possible alternate delivery
dates.
11.2 Delayed Delivery Dates. If NP is unable to deliver OEM
Product on the Agreed Delivery Date, NP shall promptly notify the appropriate
SunConnect materials management personnel (as identified by the SunConnect
Administrator), giving SunConnect a new delivery date. SunConnect may, at its
option, (1) accept the new delivery date, (2) reschedule the purchase order, (3)
require NP, at NP's expense, to use any expedited transportation methods that
are available to deliver the OEM Products to SunConnect or a designated customer
via Drop Ship as quickly as possible, or, if new date is greater than 5 days
after Agreed Delivery Date, (4) cancel the purchase order without liability. In
all cases, NP agrees to respond to SunConnect's purchase orders within 3 days
after receipt. Time is of the essence with respect to this agreement.
11.3 Overshipments. SunConnect will pay only for quantities
ordered. At SunConnect's option, overshipments will be returned to NP at NP's
risk freight collect. NP shall credit SunConnect with the amount of outbound
freight attributable to such returned overshipments.
11.4 Early Shipments. For OEM Products delivered more than five
(5) days in advance of the Agreed Delivery Date(s), SunConnect may (i) return
such OEM Products to NP freight
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collect, or (ii) accept such OEM Products with payment based upon the Agreed
Delivery Date(s) and not the date of receipt by SunConnect.
11.5 Partial Deliveries. NP shall use reasonable efforts to
deliver the full number of OEM Products ordered by SunConnect on the Agreed
Delivery Date(s). If NP is unable to deliver the full number of OEM Products
ordered, NP shall notify SunConnect promptly, and SunConnect shall consent to
such partial delivery provided that the Agreed Delivery Date is met for the
deliverable portion. Partial deliveries shall be separately invoiced by NP and
paid for by SunConnect without regard to subsequent deliveries. The undelivered
portion of the order shall be subject to the terms of Section 11.2.
11.6 * "Confidential portion has been omitted and filed separately
with the Commission."
11.7 Shipping Documents and Markings.
a. Shipping labels and containers must comply with the
requirements set forth in Section 8.2 above.
b. Shipping documentation must be complete and accurate.
This documentation must include the SunConnect part number, the manufacturer's
part number, the total quantity shipped, the SunConnect purchase order number,
the number of shipping containers in the delivery, the quantity per shipping
container, indication of partial/complete shipment and the waybill/Bill of
Lading number.
11.8 Shipping Reports. NP will deliver to SunConnect shipping
reports specified in Exhibit O.
11.9 * "Confidential portion has been omitted and filed separately
with the Commission."
11.10 * "Confidential portion has been omitted and filed
separately with the Commission."
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11.11 Import and Export Licenses. NP shall provide all information
under its control which is necessary or useful for SunConnect to obtain any
export or import licenses required for SunConnect to ship or receive OEM
Products, including, but not limited to, U.S. customs certificates of delivery,
affidavits of origin, and U.S. Federal Communications Commissions identifier, if
applicable. The parties agree not to export or re-export, or cause to be
exported or re-exported, the OEM Product, any technical data of any kind
received hereunder, or the direct product of such technical data, without
complying with the laws of the United States, regulating the same.
11.12 End of Term Orders. Purchase orders placed by SunConnect
prior to the end of the Term for which the Agreed Delivery Date(s) are after the
end of the Term shall continue to be governed by the terms and conditions of
this Agreement.
12.0 PAYMENT
12.1 Invoice Contents. Upon shipment of OEM Products ordered, NP
will submit an invoice showing invoice number and date, remit to address, the
purchase order number, SunConnect part number, description of each OEM Product,
quantity of each OEM Product, unit prices, each applicable tax and extended
totals.
12.2 Payment of Invoice. SunConnect shall be invoiced upon
shipment of OEM Product and shall pay each invoice when due. Payment terms are *
"Confidential portion has been omitted and filed separately with the
Commission." days after shipment to SunConnect's "Ship to" location of the OEM
Product covered by the invoice, unless SunConnect notifies NP prior to the
payment due date that such OEM Products am defective or nonconforming in any
manner.
12.3 Payment Not Acceptance. SunConnect's payment of an invoice
does not constitute acceptance of OEM Products. Invoices will be subject to
adjustment for errors, shortages, defects in OEM Products or other failure of NP
to meet the requirements of this Agreement.
13.0 ACCEPTANCE AND QUALITY
13.1 Compliance with Standards. Each OEM Product delivered to
SunConnect shall meet all requirements set forth in Section 8.2. SunConnect
shall not be required to accept any such OEM Product which does not meet such
standards.
13.2 Audits. SunConnect or its agent may perform reasonable source
inspection and quality assurance audits at NP's facility. SunConnect retains the
right to periodically audit NP's facilities and records to validate incoming
quality data, test yield data and manufacturing yield data.
13.3 Quality Reports. Within 7 days after the end of each month,
NP shall provide to a SunConnect Administrator a written quality report in a
form approved by a SunConnect Administrator for the immediately preceding month.
13.4 Effect of Defects. If any of the OEM Products are defective
in material or workmanship or are otherwise not in conformity with the
requirements of this Agreement, NP and SunConnect will work together to develop
a plan to correct such defects or nonconformities. If a plan has not been agreed
to within five (5) business days, then SunConnect may either:
a. Reject and return an entire lot(s) for replacement in
which event NP shall, at NP's expense, replace Product(s) within twenty (20)
working days;
b. Perform one-hundred percent (100%) testing, at NP's
expense, retain all conforming Product and reject all nonconforming Product. Any
Product that has been rejected or
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required to be corrected must be replaced or corrected by and at the expense of
NP promptly after notice; or
c. Accept it with a mutually agreed-upon adjustment in
price.
13.5 Returns. NP shall issue a Return Material Authorization
("RMA") within two (2) business days after SunConnect's request to return
defective OEM Products pursuant to the product warranty procedure as described
under Section 23. Any additional terms of the RMA procedure shal1 be mutually
agreed to between the parties. SunConnect shall include the RMA number with all
returns.
14.0 RESCHEDULING AND CANCELLATION.
14.1 Rescheduling. SunConnect may reschedule all or any part of
any purchase order or forecast under this Agreement for a new delivery date up
to ninety (90) days after the Agreed Delivery Date in accordance with the limits
as follows:
- ------------------------------------- ---------------------------------- -----------------------------------
Number of Days Prior to Agreed Maximum Dollar Value of Purchase Date on Which Delivery Must Be
Delivery Date Reschedule Notice is Order Which May Be Rescheduled Accepted
Received
- ------------------------------------- ---------------------------------- -----------------------------------
61 - 90 Days * "Confidential portion has been omitted and filed separately with
the Commission."
- ------------------------------------- ----------------------------------------------------------------------
0 - 60 Days * "Confidential portion has been omitted and filed separately with
the Commission."
- ------------------------------------- ----------------------------------------------------------------------
Purchase orders may not be rescheduled more than twice.
14.2 * "Confidential portion has been omitted and filed
separately with the Commission."
14.3 * "Confidential portion has been omitted and filed
separately with the Commission."
14.4 * "Confidential portion has been omitted and filed
separately with the Commission."
15.0 TRADEMARK LICENSE
15.1 Trademarks And Trade Dress. The packaging, artwork.
documentation and other materials provided to NP by SunConnect hereunder may
contain Sun Microsystems, Inc. ("Sun") trademarks and or trade dress
requirements ("Sun Trademarks and Trade Dress").
15.2 Grant Of License. SunConnect grants to NP a non-exclusive,
royalty-free, nontransferable license for the term of this Agreement to
reproduce the Sun Trademarks and Trade Dress in the United States (the
"territory") solely for the purpose of producing the OEM Products for delivery
to
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SunConnect hereunder. NP is granted no other right, title or license. In
particular, NP shall not use the Sun Trademarks or Trade Dress on any item other
than the OEM Products; shall not deliver any item marked with the Sun Trademarks
or Trade Dress to any entity other than SunConnect or its affiliated companies
unless specifically directed in writing by SunConnect's Administrator; and shall
have no right to sublicense the Sun Trademarks or Trade Dress.
15.3 Territory. NP shall not use the Sun Trademarks or Trade Dress
outside the United States (the "Territory") without the prior written consent of
Sun's Administrator. SunConnect may refuse to extend the Territory in its sole
discretion.
15.4 Quality Standards. NP shall use the Sun Trademarks and Trade
Dress only on Software Products that conform to the standards set forth in
Section 8.2, including the certification requirement therein.
15.5 Trademark Usage. NP shall not modify the Sun Trademarks or
Trade Dress in any fashion whatsoever without written instructions from Sun's
Administrator. NP will not place any NP or third party trademark, trade name,
logo or other identifying material on the OEM Products without the written
consent of SunConnect's Administrator.
15.6 Protection Of The Sun Trademarks. Sun is the sole owner of
the Sun Trademarks and Trade Dress and all goodwill associated therewith. NP's
use of the Sun Trademarks and Trade Dress inures solely to the benefit of Sun.
NP shall not do anything that might harm the reputation or goodwill of the Sun
Trademarks or Trade Dress. NP shall not challenge Sun's rights in or attempt to
register the Sun Trademarks or Trade Dress, or any other name or mark owned by
Sun or substantially similar thereto. NP shall take no action inconsistent with
Sun's ownership of the Sun Trademarks and Trade Dress. if it at any time NP
acquires any rights in, or registration or application for, the Sun Trademarks
or Trade Dress by operation of law or otherwise, it will immediately upon
request by Sun or SunConnect and at no expense to Sun or SunConnect, assign such
rights, registrations, or applications to Sun, along with any and all goodwill
associated with the Sun Trademarks and Trade Dress. The parties agree and
acknowledge that Sun remains responsible for the protection and maintenance of
the Sun Trademarks and Trade Dress. NP will, if requested by SunConnect, provide
assistance in matters relating to this Trademark License, including but not
limited to (a) giving prompt written notice to SunConnect's Administrator of any
known or potential infringement of the Sun Trademarks or Trade Dress, and (b)
cooperating with SunConnect in the preparation and execution of any documents
necessary to record this Trademark License with the appropriate trademark
authorities. SunConnect shall reimburse NP for the reasonable costs associated
with providing such assistance, except to the extent that any such costs result
from a breach of this Agreement by NP, NP shall not commence any action
regarding the Sun Trademarks or Trade Dress without SunConnect's prior written
consent.
15.7 Disclaimer Of Warranties By SunConnect. SUNCONNECT MAKES NO
WARRANTIES OF ANY KIND RESPECTING THE SUN TRADEMARKS OR TRADE DRESS, INCLUDING
THE VALIDITY OF SUN'S RIGHTS IN THE SUN TRADEMARKS OR TRADE DRESS IN ANY
COUNTRY, AND DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SUN TRADEMARKS AND
TRADE DRESS THAT MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW
15.8 * "Confidential portion has been omitted and filed separately
with the Commission."
12
16.0 PROGRAMS AND SERVICES
16.1 POU/DTS Program. The parties will negotiate in good faith to
develop with NP a POU/DTS Program. Such program shall be designed to supply
SunConnect with OEM Product(s) that meets established quality levels and
eliminate incoming inspection.
16.2 Just In Time Delivery Program. The parties will negotiate in
good faith to develop with NP a Just In Tune delivery program ("JIT"). Such JIT
shall be designed to supply SunConnect with the OEM Product(s) at the time at
which SunConnect requires such OEM Product(s) so as to reduce the inventory
which SunConnect is required to retain in order to meet its production needs.
16.3 Electronic Data Interchange (EDI) Program. Should SunConnect
and NP enter into an EDI Program which is designed to allow SunConnect and NP to
transmit electronically all data and information necessary to conduct business
between the two companies, it shall be pursuant to the terms and conditions set
forth in Exhibit P.
16.4 Score Card Criteria. The Score Card is a measurement tool
used to rate NP's overall performance, including, but not limited to, quality,
delivery, technology, price and service. NP acknowledges that, at SunConnect's
option, NP may be evaluated in accordance therewith and agrees to cooperate with
SunConnect in this process. A copy of SunConnect's Score Card criteria and a
sample of the ScoreCard has been provided to NP.
16.5 Co-Marketing. The parties may enter into agreements regarding
co-marketing of the OEM Products.
17.0 SAFETY COMPLIANCE AND STANDARDS
17.1 Specification. NP warrants that each OEM Product delivered to
SunConnect will meet the requirements of Section 1.4 (Compliance with standards)
of Exhibit A-1 throughout the Term. Design changes on OEM Products which affect
compliance status, and design changes which may be required due to a change in
the compliance standards, shall be submitted by NP for reapproval at NP's cost.
NP shall provide confirmation of such approvals to SunConnect's Administrator or
Administrator's designee within thirty (30) days after execution of this
Agreement or receipt of approval, as applicable. Such approvals must
specifically identify the OEM products as SunConnect products.
17.2 Applicable Law. NP warrants and represents that OEM Products
comply with all applicable federal, state, administrative and foreign laws,
statutes and regulations for all countries to which NP distributes its products.
NP agrees to notify SunConnect of any post-sale warnings, retrofits or recalls
which NP implements with respect to any of the OEM Products.
17.3 ISO Certification. NP will use its best efforts to become ISO
9001 certified within 18 months from the Effective Date of this Agreement, and
to remain ISO - certified throughout the term of this Agreement.
13
18.0 DISCONTINUED PRODUCTS
18.1 Product Discontinuance by NP. NP will not discontinue any of
the OEM Products during the Initial Term of this Agreement without the prior
written consent of SunConnect's Administrator. During any renewal term, NP may
discontinue the manufacture and sale of an OEM Product upon six (6) month's
prior written notice to SunConnect, so long as NP does not sell such OEM Product
to any other of its customers after it stops selling such OEM Product to
SunConnect. Within sixty (60) days after receipt by SunConnect of written notice
of such discontinuance ("Notice Date"), SunConnect may place and NP shall accept
a binding. non-cancelable written commitment for such discontinued OEM Product
for delivery over a one (1) year period following the Notice Date. OEM Products
to be delivered during this one year period may be rescheduled as specified in
Section 14.1, provided that no OEM Product may be rescheduled for delivery after
the first anniversary of the Notice Date. Discontinuance of any OEM Product
shall also be subject to the provisions of Section 19 of this Agreement.
18.2 Component Discontinuance by NP's Vendors. If NP learns that
any of the components in an OEM Product is being discontinued and cannot be
replaced with a component with similar functionality at the same or lesser cost,
then NP shall notify the SunConnect Administrator. NP will use all reasonable
commercial efforts to develop an appropriate solution, subject to SunConnect's
reasonable approval.
18.3 Product Discontinuance by SunConnect. SunConnect may
discontinue any OEM Product on six (6) months notice to NP.
19.0 * "Confidential portion has been omitted and filed separately with
the Commission."
14
20.0 PROPRIETARY INFORMATION
20.1 Duty of Non-Disclosure. Each party shall, at all times during
the term of this Agreement and for five (5) years thereafter, keep in confidence
and trust all of the other's Proprietary Information disclosed to it and shall
not use such Proprietary Information other than as permitted under the terms of
this Agreement, nor shall either party disclose Proprietary Information of the
other to any third party except as permitted hereunder without the prior written
consent of the disclosing party. Both parties acknowledge that information
disclosed orally and announced at the time of such disclosure which is specific
to the design and properties of the SunLink Source Code and the Escrow Materials
(as defined in Section 19.4) shall be considered Proprietary Information without
the need for a subsequent writing summarizing the contents of the disclosure.
20.2 Standard of Care. Each party shall use the same standard of
care to prevent disclosure of the Proprietary Information of the other party
which it uses to safeguard its own valuable confidential information and/or
trade secrets, and in no event km than a reasonable degree of care for such
information; provided, however, that neither party shall be liable for any
inadvertent or unauthorized disclosure of Proprietary Information occurring if
it exercises at least the standard of care set forth above to prevent disclosure
and takes reasonable steps to mitigate any damage and prevent further
disclosure. Each party shall promptly notify the other if it becomes aware that
the other party's Proprietary Information has been or is likely to be disclosed
without authorization under this Agreement.
20.3 Advising Employees. Each party dull inform its employees
having access to the Proprietary Information of such party's limitations, duties
and obligations regarding non-disclosure and copying of the Proprietary
Information and shall obtain their agreement, whether by means of existing or
new agreements, to comply with those limitations, duties and obligations.
15
20.4 Exceptions. Notwithstanding any provisions herein concerning
non-disclosure and non-use of the Proprietary Information, neither party shall
have any obligations concerning the disclosure or use of any such information
which: (a) is already known to receiving party other than by previous disclosure
under an obligation of confidentiality; (b) is or becomes publicly known through
publication, inspection of product or otherwise and through no wrongful act of
the receiving party, (c) is received from a third party without similar
restriction and without breach of this Agreement, (d) is disclosed or released
for disclosure by the disclosing party to others without restriction, (e) is
disclosed in accordance with the specific written approval of the disclosing
party; or (f) has been independently developed by the receiving party.
20.5 Disclosure Required by Law. Either party may disclose any
Proprietary Information to the extent necessary to comply with any law,
regulation or other governmental requirement provided that such party previously
notifies the other party so that it may take appropriate protective measures.
20.6 Future Development. Each party to this Agreement understands
that the party receiving Proprietary Information may now or in the future be
developing proprietary information internally, or receiving proprietary
information from third parties in confidence that may be similar to disclosed
Proprietary Information. Accordingly, nothing in this Agreement shall be
construed as a representation or inference that the receiving party will not
develop products, for itself or others, that compete with the products,
processes, systems or methods contemplated by the disclosed Confidential
Information.
20.7 Inventions.
a. All discoveries. improvements and inventions conceived
or first reduced to practice, as those terms are used before the U.S. Patent and
Trademark Office, in the performance of this Agreement ("Inventions") by
SunConnect's personnel shall be the sole and exclusive property of SunConnect
and SunConnect shall retain any and all rights to file any patent applications
thereon. All Inventions of NP's personnel shall be the sole and exclusive
property of NP and NP shall retain any and all rights to file any patent
applications thereon.
b. * "Confidential portion has been omitted and filed
separately with the Commission."
c. The provisions of this Section 20.7 regarding rights
of ownership * "Confidential portion has been omitted and filed separately with
the Commission.", sharing of expenses and licenses shall also apply to work of
the parties and results obtained with respect to copyrightable subject matter,
mask work rights and trade secrets.
21.0 * "Confidential portion has been omitted and filed separately with
the Commission."
16
22.0 INSURANCE. During the term of this Agreement, NP, at its sole cost
and expense, shall carry and maintain Commercial General Liability Insurance
with an "A" rated company or companies insuring NP, its agents, employees or
associates covering all operations of NP including, but not limited to,
Products/Completed Operations and Blanket Contractual Liability specifically
covering the indemnification provisions in Section 21.0, against claims for
personal and bodily injury and property damage with a combined single limit of
$2,000,000.
23.0 WARRANTY.
23.1 Non-Infringement. NP hereby warrants that: (i) has the right
and power to enter into this Agreement and to grant the rights and licenses
granted to SunConnect hereunder; and (ii) the OEM Products will not infringe any
patent, copyright, trade secret or other intellectual property right of any
third party.
23.2 Product Warranty. NP warrants that all OEM Products delivered
hereunder are new, unused and will perform in accordance with the Documentation,
and will achieve any function described therein, will be free from defects in
design, material and workmanship and will substantially
17
comply with the requirements of this Agreement for a period of * "Confidential
portion has been omitted and filed separately with the Commission." from the
date of acceptance by SunConnect of OEM Products. When any OEM Products do not
meet the foregoing warranty, and SunConnect or its Service Providers so notifies
NP in writing within the warranty period, NP will repair or replace the OEM
Product as quickly as possible, but in no event later than twenty (20) days
after receipt of notification or as otherwise agreed to between the parties. NP
shall have no obligation hereunder to make repairs or cause replacements
required through normal wear and tear.
23.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS
AGREEMENT, NP MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS
TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION ON NP'S
BEHALF CONCERNING THE PERFORMANCE OF THE OEM PRODUCTS OTHER THAN AS PROVIDED IN
THIS AGREEMENT.
24. TERM AND TERMINATION
24.1 Term. Subject to the provisions of Section 24.1
("Assignment"), this Agreement shall commence on the Effective Date and shall
continue for * "Confidential portion has been omitted and filed separately with
the Commission." ("Initial Term"), and thereafter this Agreement shall be
automatically renewed for additional one (1) year periods unless either party
gives written notice of termination at least sixty (60) days before any
anniversary of the execution date after the end of the Initial Term or unless
sooner terminated in accordance with the provisions hereof (the "Term").
24.2 Termination by Either Party. Either party may, by written
notice, and/or suspend its performance under this Agreement, or cancel any
purchase hereunder without penalty, if the other party:
a. fails to comply with any of the material terms and
conditions of this Agreement, the other party may terminate this Agreement upon
thirty (30) days' written notice to the defaulting party specifying any such
breach, unless within the period of such notice, all breaches specified therein
shall have been remedied or, for breaches which by their nature require more
than thirty (30) days to remedy, the parties shall have agreed upon a plan for
the defaulting party to remedy such breaches.
b. becomes bankrupt, becomes the subject of any
proceedings seeking relief or reorganization which are not stayed within 60
days, or makes an assignment for the benefit of creditors.
24.3 Negotiation of Disputes. Both parties agree to negotiate in
good faith the settlement of any dispute that may wise under this Agreement.
Pending negotiations toward settlement of any dispute, NP agrees to continue to
develop, fabricate, and deliver OEM Products under the terms of this Agreement
and SunConnect agrees to make payments on invoices due in accordance with
Section 12.
24.4 Effect of Termination. If this Agreement is terminated for
NP's default, SunConnect may, at its sole option require NP to transfer title
and to deliver to SunConnect, in the manner and to the extent directed by
SunConnect, (i) all completed OEM Products not yet delivered and (ii) any
partially completed OEM Products and materials that NP has produced or acquired
for the performance of the terminated portion. Payment for OEM Products and
materials delivered to and accepted by SunConnect under this Section will be at
a price (not to exceed the contract price) agreed upon by NP and SunConnect.
18
24.5 No Damages for Termination. Neither party shall have the
right to recover damages or indemnification of any nature, whether by way of
lost profits, expenditures for promotion, payment for goodwill or otherwise made
in connection with the business contemplated by this Agreement, due to the
expiration or permitted or lawful termination of this Agreement. EACH PARTY
WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR
TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS SUCH TERMINATION IS IN BREACH OF
THIS AGREEMENT.
25.0 LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES ARISING UNDER SECTION
21 * "Confidential portion has been omitted and filed separately with the
Commission.", IN NO EVENT WILL EITHER SUNCONNECT OR NP BE LIABLE TO THE OTHER
FOR THE OTHER'S SPECEAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
26.0 RELATIONSHIP OF PARTIES. Neither party shall have, or shall
represent that it has, any power, right or authority to bind the other party, or
to assume or create any obligation or responsibility, express or implied, on
behalf of the other party or in the other party's name. Nothing stated in this
Agreement shall be construed as constituting NP and SunConnect as partners,
joint venturers, or as creating the relationships of employer and employee,
franchiser and franchisee, master and servant, or principal and agent.
27.0 PUBLICITY. Neither party shall publicize or disclose the existence
or terms and conditions of this Agreement, or any transactions hereunder,
without the express, prior written consent the other party, except as required
by applicable law or regulation.
28.0 ADMINISTRATION. SunConnect and NP shall, each assign a primary and
secondary individual to administer this Agreement throughout its term. Each
party shall inform the Administrator of the other in writing of a change of
Administrator or such Administrator's address or telephone number. SunConnect's
Administrators shall be:
PRIMARY ADMINISTRATOR
Michael Hutchings
SunConnect Technology Enterprises, Inc.
2475 Garcia Avenue, M/S MTV 14-40
Mountain View, CA 94043
Ph: (415) 336-1005
Fax: (415) 336-3156
SECONDARY ADMINISTRATOR
Philippe Monot
Sun MicroSystems, Inc.
32, chemin du Vieux Chene
38240 MEYLAN
FRANCE
Ph: (011) 33.76.41.42.43
Fax: (011) 33.76.41.42.41
NP's Administrators shall be:
PRIMARY ADMINISTRATOR
Mitch Strobin
Network Peripherals, Inc.
19
Milpitas, Ca. 95035
Ph: (408) 321-7300
Fax: (408) 321-9218
SECONDARY ADMENISTRATOR
William F. Kelly
Network Peripherals Inc.
Milpitas, Ca. 9503
Ph: (408) 321-7300
Fax: (408) 321-9218
29.0 GENERAL.
29.1 Entire Agreement. This Agreement and all of its referenced
Exhibits, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior proposals, negotiations and
communications, oral or written, between the parties with respect to the subject
matter hereof. No deviation from these provisions shall be binding unless in
writing and signed by an authorized representative of the party to be charged.
29.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and wholly to be performed in California by residents of
California. The parties specifically agree that the 1980 United Nations
Convention on the International Sale of Goods shall not apply to this Agreement.
The parties agree that the exclusive jurisdiction and venue of any action
between the parties arising out of this business relationship, including
disputes that may arise following termination of this Agreement, shall be the
Superior Court of California for the County of Santa Clara or the United States
District Court for the Northern District of California and each of the parties
hereby submits itself to the exclusive jurisdiction and venue of such courts for
purposes of such action.
29.3 Assignment. The rights, duties and obligations either party
under this Agreement may not be assigned in whole or in part by operation of law
or otherwise without the prior express written consent of the other party, which
consent shall not be unreasonably withheld, and any attempted assignment of any
rights, duties or obligations hereunder without such consent shall be null and
void, except that SunConnect may assign its rights and obligations without NP's
consent, to a corporation or other entity which is controlled by, under common
control with, or controls SunConnect Microsystems, Inc. This Agreement shall be
binding on the parties and their respective successors and permitted assigns.
29.4 Notices. Any notice required or permitted to be given under
this Agreement shall be given in writing and shall be deposited, postage
prepaid, certified mail return receipt requested, in the United States mail,
addressed to SunConnect or NP as the case may be, at the address set forth above
or at such other address as may be given in writing.
29.5 Waivers, Severability. All rights and remedies conferred
under this Agreement or by any other instrument or law shall be cumulative and
may be exercised singularly or concurrently. Failure by either party to enforce
any provision shall not be deemed a waiver of future enforcement of that or any
other provision. In the event that any portion of this Agreement shall be held
to be unenforceable, the remaining portions of this Agreement shall remain full
force and effect.
29.6 Force Majeure. Neither party shall be liable for any delay or
failure in performance hereunder caused by acts of God or other cause beyond the
parties control and without fault or negligence of such party. In the event NP
fails to deliver OEM Product due to such causes, SunConnect may suspend this
Agreement in whole or in part for the duration of the delaying cause, and at
SunConnect's option, buy the OEM Product(s) elsewhere and deduct from any
milestone or commitment to NP the quantity so purchased. NP shall resume
performance under this Agreement immediately after the delaying
20
cause ceases and, at SunConnect's option, extend the Initial Term and/or Term
for a period equivalent to the length of time the excised delay endured.
29.7 Survival. Notwithstanding the termination or expiration of
the term of this Agreement or any renewal period thereof, it is acknowledged and
agreed that those rights and obligations which by their nature are intended to
survive such expiration or earlier termination shall survive including, without
limiting the foregoing, Sections 15.7, 15.8, 20, 21, 23, 25, and 29.
29.8 Exhibits. The following is the list of Exhibits which are
attached hereto and incorporated herein by this reference as if set forth in
full:
Exhibits A, A-1 and A-2: Product Specification
A-3 Pre-FCS Quality Assurance Plan
A-4 BOM
B. Development Schedule
C. Sun-Unique Elements
D. * "Confidential portion has been omitted and filed
separately with the Commission."
E. Support *
F. Procedures for Board Replacement (In and out of
warranty)
G. [This Exhibit does not exist]
H. [This Exhibit does not exist]
I. * "Confidential portion has been omitted and filed
separately with the Commission."
J. Quality Systems Manual
K.-1 Inbound/Outbound Packaging Requirements *
K-2 Engineering Specification for Part Identification
Label * -
K-3 Corporate Shipping Container Graphics Guideline *
K-4 Shipping Carton Color Standard *
K-5 Specification for A SunConnect Color SunConnect
Medium Purple *
K-6 Routing Guide *
L. [This Exhibit does not exist]
M. List of SunConnect Suppliers from whom NP can
purchase
21
N. Pricing and Leadtimes
0. Shipping Reports
R EDI *
Q. Information Required for Contingent Manufacturing
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Accepted for SunConnect: Accepted for NP:
SUN TECHNOLOGY ENTERPRISES, INC. NETWORK PERIPHERALS INC.
BY: ____________________________ BY: ________________________
NAME: ____________________________ NAME: ________________________
TITLE: ____________________________ TITLE: ________________________
DATE: ____________________________ DATE: ________________________
22
Exhibit A: SunLink FDDI/S3.x
Product Specifications
______________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
Exhibit A-1: SunLink FDDI/S3.0
Product Specifications
______________________________________________________
This document defines the SunLink FDDI/S 3.0 product
line.
Please refer to the exhibit A for general description
of the product line.
A more detailed specification is given below.
* "Confidential portion has been omitted and filed
separately with the Commission."
Exhibit A-2: SunLink FDDI/S3.1
Product Specifications
______________________________________________________
This document defines the SunLink FDDI/S 3.1 product
line.
Please refer to the exhibit A for general description
of the product line and to the exhibit A-1 for general
description of the SunLink FDDI/S 3.0 products.
As a general policy, the SunLink FDDI/S 3.1 products
are a superset of the SunLink FDDI/S 3.0 products. All
the hardware, driver, compatibility, performance,
security, compliance, packaging, documentation, etc.,
features described in the SunLink FDDI/S 3.0
specifications are applicable to the SunLink FDDI/S
3.1 products.
This document only describes new additional features
which may not be included in the SunLink FDDI/S 3.1
products.
All the functionalities described in this
specification are already described as optional
features in the SunLink FDDI/S 3.0 specification.
Therefore, they may already be included in the SunLink
FDDI/S 3.0 products. Depending on the number and the
importance of the features which are not included in
the SunLink FDDI/S 3.0 products and remain to be
implemented, SunConnect may decide not to require the
release of the SunLink FDDI/S 3.1 product line.
* "Confidential portion has been omitted and filed
separately with the Commission."
Exhibit A-3: SunLink FDDI/S3.x
Pre-FCS Quality Assurance Plan
______________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
EXHIBIT A-4
FDDI/S 3.0 PRODUCT DEFINITION
for OEM Products including Derivative Products
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit B: SunLink FDDI/S 3.x
Development Schedule and Deliverables
______________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
Exhibit C: SunLink FDDI/S3.x
Sun Unique Elements
______________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
EXHIBIT D
* "Confidential portion has been omitted and filed separately with the
Commission."
SCHEDULE D-1
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT E
SUPPORT REQUIREMENTS
1. DEFINITIONS
1.1 "Supported Products" means the SunLink FDDI/S v. 1.0 and 2.0 (both
software and hardware components) and the OEM Products.
1.2 "Enhancement Release" means a hardware or software product which
typically includes incremental improvements to a product's functionality or
performance. An Enhancement Release is generally characterized by a single digit
change to the right of the decimal point (tenths) of an existing version of a
software product, i.e., X.(X).X.
1.3 "Escalation" means a bug, error or other problem with the Supported
Products that is referred by SunConnect to NP. Escalations are rated according
to their severity (urgency for response) as follows:
o Meltdown/Priority 1 Escalations are problems which
require an immediate response, such as the customer's
system being down.
o Hot/Priority 2 Escalations are problems which require a
very prompt but not an immediate response, such as the
customer's system being operational but with significant
degradation or loss of features.
o Warm/Priority 3 Escalations are problem which do not
require as immediate or prompt a response as
Meltdown/Priority 1 or Hot/Priority 2 Escalations because
they have a less severe impact on the customer.
1.4 "Maintenance Release" means a release of a software product or
component typically to correct errors to enable the product or component to meet
its published functionality. A Maintenance Release is usually developed to
incorporate error corrections and/or patches. A Maintenance Release is typically
characterized by a change in the digit to the extreme right of the decimal point
(hundredths) of an existing version of a software product, i.e., X.X.(X).
1.5 "Services" means the on-call support, escalation management,
problem determination, maintenance and other software support services.
1.6 "Workaround" means a method a customer can use to avoid a problem.
Provides a customer with short term approach to dealing with known problems.
2. NP SUPPORT OBLIGATIONS
2.1 On-Call Support and Escalation Management. Escalations will be
referred to NP only by the SunConnect designated contact person(s). NP shall
provide engineering support for Supported Products and shall have available
sufficient trained and qualified support engineers to perform Services within
the response times set forth as follows:
- -------------------------- -------------------------- ------------------------- ---------------------------
SunConnect Callback;
NP Engineer Assigned; Fix, Workaround, or
Initial action Plan to Long-Term Action Plan
Call Priority SunConnect Status Reports to SunConnect
- -------------------------- --------------------------------------------------------------------------------
1 * "Confidential portion has been omitted and filed separately with the
Commission."
- -------------------------- --------------------------------------------------------------------------------
2 * "Confidential portion has been omitted and filed separately with the
Commission."
- -------------------------- --------------------------------------------------------------------------------
3 * "Confidential portion has been omitted and filed separately with the
Commission."
- -------------------------- --------------------------------------------------------------------------------
Days and hours shall be measured according to continuous business hours. Defined
as: Monday through Friday; 8:00 am to 5:00 pm Pacific Time, excluding US
nationally recognized holidays. NP shall meet response time requirements for at
least 90% of calls or reports from SunConnect.
EXHIBIT E (con't)
2.2 Support Information Access: The SunConnect Contact Person will be
responsible for assigning Escalations to NP and for providing NP with
appropriate background information related to such Escalations. Such information
may include prior analysis or traces performed on the problem, and any relevant
bug track entries. All requests by NP for additional information relating to a
particular Escalation shall be addressed to and responded to by SunConnect's
Contact Person or such other person as may be designated by SunConnect.
2.3 Problem Determination. NP is responsible for (i) determining the
nature and cause of an Escalation; and (ii) creating a problem/solution synopsis
for each Escalation. The initial action plan shall include the responsible
engineer assigned, results of the initial investigation, verifying that it is a
bug and a fix/workaround will be provided, what will be the next steps taken,
when a fix/workaround and update will be provided.
2.4 Workarounds. NP shall attempt to provide Workarounds wherever
appropriate in response to Escalations until a Modification can be created.
Appropriate documentation/integration notes are required. Information regarding
Workarounds shall be submitted by NP to SunConnect.
2.5 Error Corrections/Patches. NP shall use reasonable efforts to
create Patches to fix Supported Product defects and test and integrate any such
fix in a format acceptable to SunConnect. NP shall provide Patches to SunConnect
in an object code master copy for duplication and distribution. NP will maintain
a copy of all Patches and problem workarounds produced and will make backup
tapes containing all then current source and patch directories for the Supported
Products available for inclusion into the Escrow Account.
2.6 Transfer of Responsibility. If ongoing support will be provided by
someone other than NP, NP agrees to make reasonable efforts to notify SunConnect
to preliminary details of the transition agreement a minimum of 90-days in
advance of the transaction of SunConnect to verify the new owner is prepared to
assume the responsibility. NP shall make best efforts to address issues that
impact SunConnect's support operations.
2.7 * "Confidential portion has been omitted and filed separately with
the Commission."
2.8 * "Confidential portion has been omitted and filed separately with
the Commission."
2.9 Inability to Support FDDI 1.0 and 2.0. If, after the diligent
exercise of all reasonable commercial efforts NP is unable to provide support,
workarounds; or spares for SunLink 1.0 or 2.0 products, then NP may notify
SunConnect's Administrator and shall provide SunConnect with all information
relating to the problem and NP's efforts to resolve such problem. Upon receiving
the required notice and information from NP, SunConnect shall assume
responsibility for developing a solution, with NP's reasonable assistance.
EXHIBIT E (con't)
3. TRAINING AND CONSULTATION
3.1 Transfer of Information (TOI). This Section 3.1 shall not apply to
Maintenance Releases. For each new Enhancement Release, NP shall ensure
SunConnect receives Transfer of Information (TOI) ten (10) weeks prior to
product release. The Initial TOI will be completed by FCS Code Freeze. NP shall
offer one train-the-trainer session at a central SunConnect designated facility,
and agrees to videotape the session for SunConnect duplication and distribution.
The Initial TOI will be ready within seven (7) days following FCS Code Freeze.
Content of the TOI must include the following to a sufficient level of detail:
Product Overview
Features
Limitations
File Descriptions
External Specification (Functional Spec)
Theory of Operation - detail of installation, configuration
Walk through of product install, config, deinstall
Troubleshooting/Diagnostics
Known Bugs
Common User Errors
Troubleshooting tools and Diagnostic techniques
Support Center requirements
Recommended Support Strategy
3.2 Customer Training. Upon SunConnect's specific request and with NP's
agreement, NP shall be available to participate in training of SunConnect's
distributors and resellers in providing support services for the Supported
Products. Such training may include both creating and conducting training
programs.
3.3 Responses to Questions. NP shall answer technical questions on the
Supported Products from SunConnect's "support" alias, or other such restricted
access aliases for support purposes. Until NP is provided access to such aliases
SunConnect shall monitor such aliases and provide NP the questions that require
answers. NP agrees to use reasonable commercial efforts to meet such response
time guidelines that might exist for such aliases. Upon SunConnect's specific
request, NP agrees to assist, as appropriate, in responding to technical
questions from Sunconnect's other aliases for the Supported Products, including
without limitation questions received via the "net amb" and "fddi-interest"
email aliases.
4. NEW OEM PRODUCT RELEASE SUPPORT DELIVERABLES
4.1 Support Deliverables. This Section 4.1 shall not apply to
Maintenance Releases nor to the initial release of the OEM Products. For each
new Enhancement Release of the OEM Products, NP shall ensure that support
deliverables are provided to SunConnect within the time frame required to ensure
support readiness at product introduction:
Deliverable: Weeks Prior to FCS:
Product/Doc Evaluation Copy * "Confidential
Product/Structure Information portion has been
Business Information & TOI Information omitted and filed
Electronic copy of SW/Docs separately with
the Commission."
EXHIBIT E (con't)
5. FDDI/S 1.0 and 2.0 Support
5.1 Level of Support. NP shall provide hardware and software support
for the FDDVS 1.0 and 2.0 products to the extent of Maintenance Releases only.
NP shall not be required to manufacture or make substantial changes to the
hardware. If hardware changes are required and SunConnect requests NP to manage
the change process then SunConnect will be responsible for all SunConnect
approved expenses incurred by NP.
5.2 Platforms Supported. The following system platforms shall be
supported:
* "Confidential portion has been omitted and filed separately with
the Commission."
5.3 Operating Systems Supported. The following Sun Operating Systems
shall be supported:
* "Confidential portion has been omitted and filed separately with
the Commission."
Exhibit F
_________________________________________________________________
Network Peripherals
Out of Warranty Repair Policy 1
Hardware Service Details
1 Network Peripherals reserves the right to change any portion of this
policy in the future.
2 Network Peripherals will update records to reflect the shipment of a
replacement product. In this case the * "Confidential portion has been
omitted and filed separately with the Commission." warranty will be in
effect for the replacement product.
3 International deliveries will be via the standard service available
through the current carrier.
EXHIBIT I
NETWORK PERIPHERALS INC.
SOURCE CODE LICENSE AGREEMENT
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit N: Pricing and Lead Time (all prices in US dollars)
________________________________________________________________________________
1. Standard OEM Products
* "Confidential portion has been omitted and filed separately with the
Commission."
2. Derivative Products
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit N: Pricing and Lead Time (all prices in US dollars)
________________________________________________________________________________
3. Lead-time for Standard OEM Products will be * "Confidential portion has
been omitted and filed separately with the Commission."
4. Flexibility of increases to Standard OEM Product orders.
Table 3 Lead-time vs. % Increase
--------------------- ---------------------
Lead-time Max. % Increase
--------------------- ---------------------
12 weeks + * "Confidential
8 to 12 weeks portion has been
6 to 8 weeks omitted and filed
4 to 6 weeks separately with the
0 to 4 weeks Commission."
--------------------- ---------------------
5. Support of SunConnect's 1.0 and 2.0 FDDI Sbus product line.
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT O
SHIPPING REPORTS
A. NP shall provide the appropriate SunConnect materials management personnel
(as identified by the SunConnect Administrator) with the following reports.
1. Weekly Performance Against Schedule ("PAS") Reports on the first business day
of each week, even if there has not been any change in the information since the
last PAS Report. The PAS Report shall include the information specified below.
A. Product Information. Open purchase orders and line numbers,
SunConnect's manufacturing part numbers, order date, open quantity, balance due
and order status.
B. Shipping Information. Agreed Delivery Dates, actual ship
dates, date of arrival, shipping method, and airbill or bill of lading number,
if possible.
2. Outbound Shipment Report within twenty-four (24) hours of the date of any
shipment of OEM Products to SunConnect. The Outbound Shipment Report shall
include the information specified below.
A. Product Information. Purchase order and line numbers, part
number, quantity
B. Shipping Information. Airbill or bill of lading number,
carrier, expected delivery date, and name of contact person at NP to contact
B. The parties will work together to develop a prototype form of monthly summary
report prior to shipment of the beta version of the OEM Products, and a final
form of monthly summary report prior to FCS of the OEM Products.
EXHIBIT P
ELECTRONIC DATA INTERCHANGE
TRADING PARTNER
1.0 Definitions.
For the purposes of this Exhibit, the following definitions shall
apply:
1.1 "EDI" means electronic data interchange.
1.2 "Transaction Set" is the collection of data that is exchanged
in order to convey meaning between the parties engaged in EDI
1.3 "Third Party Network Service Provider" or "Provider" is a
business entity that provides the service of moving and
routing EDI transmissions between trading partners.
1.4 "Enhanced Security" is a process for providing additional
security, beyond what is offered by the Provider, that the
trading partners may agree to use.
1.5 "Transaction Set Control Number" or "Header Control Number" is
an identifying number in the beginning of a Transaction Set
that can be referenced in exchanging information.
1.6 "Transaction Set Control Number" or "Trailer Control Number"
is an identifying number at the end of a Transaction Set that
must have a corresponding Header Control Number.
1.7 "Functional Group" is a group of similar Transaction Sets that
is bounded by a Functional Group header arid a Functional
Group trailer.
1.8 `Interchange Control Number' is an identifying number that is
contained in the interchange header and trailer and that is
used by the receiving party to acknowledge receipt of this
inter-change header and trailer.
1.9 "Data Interchange Control Number" is an identifying number
that is contained in the Functional Group header segment and
Functional Group trailer segment and is used by the receiving
party to acknowledge receipt of a Functional Group to the
sending party. This Data Element in the header and trailer
segments provides the control information needed by the
trading partners associated with the exchange of Functional
Group information.
1.10 "Data Element" is the smallest named unit of information in
the Transaction Set.
1.11 "Segment" or "Data Segment" is an intermediate unit of
information in a Transaction Set. Segments are defined in the
segment directory. The segment directory defines each Segment
by its name, purpose and identifier.
1.12 "Line Item" is a Data Element in the Transaction Set that is
used to provide a specific type of Hash Total.
1.13 "Hash Total" is the sum of values of a specific Data Element.
1
2.0 Prerequisites.
2.1 Documents, Standards.
Each party may electronically transmit to or receive from the
other party any of the Transaction Sets listed in Exhibit P-1
and Transaction Sets which the parties, by written agreement,
add to said Exhibit. All Transaction Sets shall be transmitted
in accordance with the standards set forth in Exhibit P-1. Any
transmission of data which is not a Transaction Set shall have
no force or effect between the parties.
Precise procedures to be used in handling Transaction Sets are
incorporated in Exhibit P-1. These procedures include
assignment of confidential and unique access codes for each
party which will then be used to authenticate each Transaction
Set, along with such other matters as the parties consider
appropriate.
2.2 Third Party Network Service Providers.
Transaction Sets will be transmitted electronically to each
party through any Provider with which either party may
contract. The Provider for each party is identified in Exhibit
P-1. Either party may change its designated Provider upon
thirty (30) days prior written notice to the other party.
Each party shall be responsible for the costs of any Provider
with which it contracts.
2.3 System Operations.
Each party, at its own expense, shall provide and maintain the
equipment, software, services and testing necessary to
effectively and reliably transmit and receive documents.
If Provider is down and this prevents either party from
meeting the pickup or delivery frequency agreed to, that party
must notify the other party the same day.
2.4 Security Procedures.
Each party shall properly use security procedures which are
reasonably anticipated to: (a) ensure that all transmissions
of Transaction Sets are authorized and (b) protect its
business records and data from improper access. Both parties
agree to preserve and safeguard the confidentiality of all
data exchanged via EDI, and will not disclose any data to any
third party, individual or corporation without the owning
party's prior written consent.
2.5 Electronic Signatures.
The parties may agree to apply special protection, where
permissible, by encryption or by other means, to some or all
data exchanged between them. If special protection is
required, it will be identified in Exhibit P-1.
3.0 Transmissions.
3.1 Proper Receipt.
Transaction Sets shall not be deemed to have been property
received, and no Transaction Set shall give rise to any
obligation, until accessible to the receiving party at such
party's electronic mailbox.
2
3.2 Verification.
Upon receipt of any Transaction Set, the receiving party shall
promptly and properly transmit a functional acknowledgment in
return within one (1) business day after receipt of a
Transaction Set.
3.3 Acceptance.
An electronic transmission of data shall be deemed complete
and a Functional Group accepted, when the receiver of the
transmission verifies by functional acknowledgment that:
A. The standards specified in Exhibit P-1 are
met;
B. The actual quantity of Functional Groups,
Transaction Sets, Segments, Line Items and
Hash Totals received within the
transmission equals the quantity the party
has identified as being included, using
the appropriate control fields specified
in Exhibit P-1.
3.4 Garbled Transmissions.
If any Transaction Set is received in an unintelligible or
garbled form, the receiving party shall promptly notify the
originating party (if identifiable from the received
Transaction Set) in a reasonable manner. In the absence of
such notice, the originating party's records of the contents
of such Transaction Set shall control.
3.5 Erroneous Transmissions.
If either party receives a Transaction Set from the other
party which differs from the applicable terms and conditions,
(e.g., an Order with a price, quantity or schedule different
than that mutually agreed upon), the receiving party shall
promptly contact the sending party to confirm the accuracy of
the Transaction Set.
3.6 Faulty Transmissions.
In the event either party receives a Transaction Set which
contains any evidence of faulty transmission, the receiving
party shall contact the sending party, reject the Transaction
Set and request that the Transaction Set be re-sent.
4.0 Terms and Conditions.
4.1 Validity, Enforceability.
This Exhibit evidences the mutual intent of the parties to
create a binding purchase and sale obligation pursuant to the
electronic transmission and receipt of documents, specifying
certain of the applicable terms. During the term of the
Agreement, all obligations concerning the delivery of such
Transaction Sets in written form may be fulfilled by a
transmission. pursuant to the terms of this Exhibit. However,
either party shall have the option, at its discretion, to
transmit Transaction Sets in written form to the other party.
3
Any Transaction Set properly transmitted pursuant to this
Exhibit, including without limitation Exhibit P-1 ("Signed
Documents"), shall be considered. in connection with any
transaction, or this Exhibit, to be a "writing" and to have
been "signed" and to consume an "original" when printed from
electronic files or records established and maintained in the
normal course of business.
The parties agree that the provisions of the Uniform
Commercial Code, Section 2-201 ("Formal Requirements: Statute
of Frauds"), shall not apply to Transaction Sets covered by
this Exhibit since hard copies of Transaction Sets will not be
issued, and the parties further agree that said Transaction
Sets shall be deemed to satisfy any statutory or legal
formalities requiring that agreements be in writing,
including, but not limited to the Statute of Frauds.
The conduct of the parties pursuant to this Exhibit, including
the use of Signed Documents properly transmitted pursuant to
this Exhibit, shall, for all legal purposes, evidence a course
of performance accepted by the parties in furtherance of this
Exhibit.
The parties agree not to contest the validity or
enforceability of Signed Documents under the provisions of any
applicable law relating to whether certain agreements be in
writing and signed by the party to be bound thereby. Signed
Documents, if introduced as evidence on paper in any judicial,
arbitration, mediation or administrative proceedings, will be
admissible as between the parties to the same extent and under
the same conditions as other business records originated and
maintained in documentary form. Neither party shall contest
the admissibility of copies of Signed Documents under either
the business records exception to the hearsay rule or the best
evidence rule on the basis that the Signed Documents were not
originated or maintained in documentary form.
4
EXHIBIT P-1
1.0 Transaction Sets.
All Transaction Sets contemplated by this Agreement shall be
transmitted and formatted in accordance with the American National
Standard Institute Business Data Interchange (ANSI X12) Standard, as
reflected in the number, version and date column set forth below
beside each Transaction Set. This also includes the data dictionary,
segment directory, and transmission controls published as X12
standards.
1.1 Transaction Sets to be transmitted by Seller to Sun.
Communication Number Version Date
------------- ------ ------- ----
1.2 Transaction Sets to be transmitted from Sun to Seller.
Communication Number Version Date
------------- ------ ------- ----
2.0 Providers.
All Transaction Sets contemplated by this Agreement will be channeled
through Providers. Sun and Seller shall each assign a Provider as
follows:
2.1 Sun's Provider.
_________________________________
_________________________________
_________________________________
_________________________________
2.2 Seller's Provider.
_________________________________
_________________________________
_________________________________
_________________________________
3.0 Transmission Requirements.
For each Transaction Set, the Header Control Number Data Element must
have an identical corresponding value in the Trailer Control Number
Data Element for all control Segments as follows:
1
1 The value for the Interchange Control Number contained in Data Element
ISA13 for a transmission must equal the value for Data Element IEA02
that is contained in the transmission.
2. The value for the Data Interchange Control Number contained in Data
Element GS06 must equal the value for Data Element GE02 that is
contained in that Functional Group.
3. The value for the Transaction Set Control Number contained in Data
Element ST02 for a Transaction Set must equal the value for Data
Element SE02 contained in that Transaction set.
In addition, the following requirements must be met:
A. The actual quantity of Functional Groups received within the
transmission must equal the quantity the trading partner has identified
as being included, As contained in the IEA01 Data Element;
B. The actual quantity of Transaction Sets received with the transmission
must equal the quantity the trading partner has identified as being
included, as contained in the GE01 Data Element;
C. The actual quantity of Segments included within each Transaction Set
must equal the quantity the trading partner has identified as being
included, as contained in the SE01 field;
D. The actual quantity of Line Items included within each Transaction Set
must equal the quantity the trading partner has identified as being
included, as contained in the CTT01 field; and
E. The Hash Totals contained in the CTT02 field must equal the sum of
values as defined in each Transaction Set.
2
Exhibit Q
* "Confidential portion has been omitted and filed separately with the
Commission."
AMENDMENT #1 TO SUN MICROSYSTEMS, INC.
DEVELOPMENT AND PURCHASE AGREEMENT
Sun Microsystems, Inc. ("Sun") and Network Peripherals Inc. ("NP") hereby agree
to amend the Development and Purchase Agreement between them dated 2/25/94
("Agreement") as follows:
1. SunSoft, Inc., a subsidiary of Sun Microsystems, Inc., hereby transfers
administration of the above referenced agreement to Sun Microsystems
Computer Company, a division of Sun Microsystems, Inc.
2. All references to "SunConnect" in the Agreement are replaced by "Sun".
3. In all sections, where applicable, reference to "Sunlink FDDI/S" is
changed to "Sun FDDI(TM)".
4. In the event of a conflict between the terms and conditions of this
Amendment No. 1 and the Agreement as it relates to the OEM Products
listed in Exhibit N, this Amendment No. 1 shall take precedence.
5. Reference Section 1.4, 2.3 and 2.4. There are no "Development
Deliverables" associated with the OEM Products set forth in Exhibit N.
6. Reference Section 1.11. Sun-unique Elements. Delete reference to "Exhibit
C" and substitute "Exhibit G".
7. Reference Section 1.12. For the purpose of this Agreement "Service
Providers" shall include "Sun-authorized third party maintainers (TPMs)".
8. In the third line of Section 3.3 after "documents" add "and Sun FDDI
documents".
9. Add at the end of Paragraph 5. 1: "In the event of a conflict between the
terms and conditions of Exhibits E and R, Exhibit R (Customer Support
Provisions) attached hereto and incorporated hereby by this reference.
Exhibit R shall take precedence."
10. Delete Paragraph 5.3 in its entirety.
11. Add at the end of Section 8. 1: "NP agrees to comply with the provisions
of Exhibit C, Supplier's Quality Program, attached hereto. In the event
of a conflict between Exhibit C and any other exhibits regarding quality
of the OEM Products, Exhibit C shall take precedence."
12. In the ninth line of Section 8.2 after "(Trademark License)" insert "and
Exhibit C".
13. Delete the 4th and 5th sentence of Section 8.3.a in their entirety and
substitute the following: "By the release of Sun FDDI 5.0, NP will
identify and reach terms with a compact disk manufacturer. Sun will
provide the necessary copyright information and product disclaimers to be
included. Sun must approve the initial procedures and file organization
before CD masters are created. Sun agrees to reimburse Supplier for the
costs of CD mastering which are estimated at $2500 to $3000."
14. Delete Section 8.4 in its entirety and substitute the following: "8.4
Copyright Notices. Documentation shall bear copyright notice(s) as
provided by Sun."
15. In Section 8.6 after "interconnectability" insert "serviceability".
16. Delete Section 9.3 in its entirety and substitute the following:
"9.3 Forecast: Sun shall provide Supplier with a * "Confidential
portion has been omitted and filed separately with the
Commission." rolling forecast of its intended purchases by the
first Monday of each month, with the first * "Confidential
portion has been omitted and filed separately with the
Commission." broken out by week. Such forecast is for Supplier's
convenience only and shall in no way create an obligation on
Sun's part to meet such forecast.
Sun acknowledges that in order to support the agreed upon
leadtime, Supplier may be required to acquire certain unique
and/or long lead time materials ("Materials") well in advance of
receipt of Sun's purchase orders and to support Sun's forecast.
The description of Materials and their respective leadtimes are
set forth in Exhibit N-1. Sun's liability for Materials is
limited to those conforming materials ordered in the minimum
quantities and leadtimes which were strictly necessary to build
Product in order to meet Sun's purchase orders and forecast.
17. Delete the last sentence of Section 10.4 and substitute the following:
"Sun agrees to respond to NP within ten (10) days after receipt of such
notification by Sun's Administrator whether Sun accepts or rejects the
price changes."
January 16, 1996 ff 1 Network Peripherals, Inc.
18. Delete Section 14.1 in its entirety and substitute the following:
"14.1 Rescheduling: Sun may reschedule delivery of all or part of any
purchase order, at no charge, to a date after the agreed delivery
date as follows:
Notice Maximum Reschedule Period Maximum Reschedules
0-30 days * "Confidential portion has been omitted and filed
separately with the Commission."
30+ days * "Confidential portion has been omitted and filed
separately with the Commission."
* "Confidential portion has been omitted and filed separately with
the Commission."
19. Delete Section 14.2 in its entirety and substitute the following:
"14.2 Cancellation:
* "Confidential portion has been omitted and filed separately with the
Commission."
20. Delete Section 18.3 in its entirety and replace with " 18.3 Product
Discontinuance by Sun. Sun agrees to give NP * "Confidential portion has
been omitted and filed separately with the Commission." notice prior to
discontinuing an OEM Product. NP shall use its best efforts to control
inventory levels and costs during Product phase-out."
21. * "Confidential portion has been omitted and filed separately with the
Commission."
22. * "Confidential portion has been omitted and filed separately with the
Commission."
23. * "Confidential portion has been omitted and filed separately with the
Commission."
24. * "Confidential portion has been omitted and filed separately with the
Commission."
25. In the sentence of Section 23.2 delete "twenty (20) days after receipt of
notification or as otherwise agreed to between the parties" and
substitute "the number of days specified in Exhibit R".
26. In the first line of Section 24 delete "Subject to the provisions of
Section 24.1 ("Assignment")".
27. Section 24, Administration. Delete Sun's and NP's Administrators and
replace with.
"Primary Administrator Secondary Administrator
Yoshikazu (Roy) Hirotsuka Flora Ford
Sun Microsystems Inc. Sun Microsystems Inc.
2550 Garcia Avenue, UMIL01-120 2550 Garcia Avenue, UMIL01-103
January 16, 1996 ff 2 Network Peripherals, Inc.
Mountain View, CA 94041 Mountain View, CA 94041
Ph:(408)276-2186 Ph: (408) 276-3945
Fax: (408) 263-0807 Fax: (408) 263-3592
Meena Bhatia Dane Iverson Gegal Department)
Network Peripherals, Inc. Network Peripherals, Inc.
1371 McCarthy Boulevard 1371 McCarthy Boulevard
Milpitas, CA 95035 Milpitas, CA 95035
Ph:(408)321-7206 Ph: (408) 321-7300
Fax: (408) 321-9218 Fax: (408) 321-9218"
28. In Section 29.7 add at the end "and Exhibits C and R".
29. Add at the end of Section 29.8:
"C - Supplier's Quality Program*
G - Sun-Unique Elements
N-1 - Pricing and Leadtimes for New OEM Products
R - Customer Support Provisions *
30. Add a new Section 29.9 as follows: "29.9 Environment. Consistent with the
U.S. Clean Air Act of 1990, Supplier shall use reasonable efforts to give
Sun as much notice as is practicable in the event Supplier uses ozone
depleting chemicals in the manufacture of the Products. Sun reserves the
right to reject any Products manufactured utilizing or containing such
materials if Sun has not previously been notified of the same."
31. Exhibit A titled "Sun FDDI SBus Adapter 4.0 Product Specifications" is
attached hereto and incorporated herein by this reference.
32. Exhibit C dated November 27, 1995 is attached hereto and incorporated
herein by this reference. Exhibit C-1 dated November 29. 1995 is attached
hereto and incorporated herein by this reference.
33. Exhibit G-1 dated December 20, 1995 is attached hereto and incorporated
herein by this reference.
34. Exhibit F is deleted in its entirety.
35. Exhibit N dated 2/24/94 is deleted in its entirety and replaced by
Exhibit N dated November 27, 1995 attached hereto and incorporated herein
by this reference.
Except as so amended, the Agreement is confirmed in its entirety.
SUN MICROSYSTEMS, INC., NETWORK PERIPHERALS INC.
acting by and through its division,
Sun Microsystems Computer Company
BY: __________________________ BY: ____________________________
NAME: __________________________ NAME: ____________________________
TITLE: __________________________ TITLE: ____________________________
DATE: __________________________ DATE: ____________________________
SUNSOFT, INC.
BY: __________________________
NAME: __________________________
TITLE: __________________________
DATE: __________________________
January 16, 1996 ff 3 Network Peripherals, Inc.
Exbihit A: Sun FDDI Sbus Adapter 4.0
Product Requirements
_______________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
EXHIBIT C
SUPPLIER'S QUALITY PROGRAM
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT C-1
ADDITIONAL CUSTOMER SUPPORT REQUIREMENTS
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit G-1: Sun FDDI 4.0
SUN UNIQUE ELEMENTS
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT N
Pricing and Leadtime
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT N-1
Materials and Leadtimes
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R
Customer Support Provisions
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R-1
NP's Repair Facilities
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R-2
Sun's Repair Depots and TPMs
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R-3
Out of Warranty Repair
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R-4
NTF Charges
* "Confidential portion has been omitted and filed separately with the
Commission."
AMENDMENT #2 TO SUN MICROSYSTEMS, INC.
DEVELOPMENT AND PURCHASE AGREEMENT
Sun Microsystems, Inc. ("Sun") and Network Peripherals Inc. ("NP") hereby agree
to amend the Development and Purchase Agreement between them dated 2/25/94
("Agreement") as follows:
1. In the event of a conflict between the terms and conditions of this
Amendment No. 2 and the Agreement as it relates to the OEM Products
listed in Exhibit N-2, this Amendment No. 2 shall take precedence.
2. Reference Section 1.4, 2.3 and 2.4. There are no "Development
Deliverables" associated with the OEM Products set forth in Exhibit N-2.
3. Within thirty (30) days after execution of this Amendment No. 2, NP will
deliver all materials described in 19.2 related to SunFDDI 5.0 to Sun's
designated Escrow Agent.
4. In Section 24, Administration, change Sun's primary administrator to:
"Mayita Sanchz
Sun Microsystems, Inc.
2550 Garcia Avenue, UMIL01-118
Ph: (408) 276-2797
Fax: (408) 945-6498"
5. Exhibit A-1 titled "SunFDDI 5.0 Product Specification", Sun Part Number *
"Confidential portion has been omitted and filed separately with the
Commission.", is attached hereto and incorporated herein by this
reference.
6. In Exhibit C, Section 2.0. insert the following after the headings
indicated:
* "Confidential portion has been omitted and filed separately with the
Commission."
7. Exhibit F dated 4/1/93 is deleted in its entirety.
8. Exhibit G, SunFDDI 5.0 Sun Unique Elements is attached hereto and
incorporated herein by this reference.
9. Exhibit N-1 dated January 18, 1996 is deleted in its entirety and
replaced by Exhibit N-1 dated September 18, 1996
10. Exhibit N-2 dated November 11, 1996 is attached hereto and incorporated
herein by this reference.
11. Exhibit R-3 dated December 5, 1995, is deleted in its entirety and
replaced by Exhibit R-3 dated October 3, 1996 attached hereto.
Except as so amended, the Agreement is confirmed in its entirety.
SUN MICROSYSTEMS, INC., NETWORK PERIPHERALS INC.
BY: __________________________ BY: ____________________________
NAME: __________________________ NAME: ____________________________
TITLE: __________________________ TITLE: ____________________________
DATE: __________________________ DATE: ____________________________
November 11, 1996 ff 1 Network Peripherals, Inc.
Sun FDDI 5.0 Product Specification
Exhibit A-1
_________________________________________________________
* "Confidential portion has been
omitted and filed separately with
the Commission."
Sun FDDI Sbus Adapter 5.0
Product Requirements
__________________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
Exhibit G: Sun FDDI 5.0
Sun Unique Elements
__________________________________________________________
* "Confidential portion has been omitted and filed
separately with the Commission."
EXHIBIT N-1
Materials and Leadtimes
* "Confidential portion has been omitted and filed separately with the
Commission."
EXHIBIT N-2
Pricing and Leadtime
* "Confidential portion has been omitted and filed separately with the
Commission."
Exhibit R-3
Out of Warranty Repair
* "Confidential portion has been omitted and filed separately with the
Commission."